When one examines the many visa categories through which a foreign national may lawfully enter or remain in our country, certain values are immediately evident. Categories which allow foreign nationals entry through U.S. Citizen or Lawful Permanent Resident relatives bespeak the value our nation places on family unity. Categories which allow foreign nationals to stay due to persecution in their home country or domestic abuse in our own country, speak to our nation’s humanitarian values. And, of course, categories that allow foreign nationals to enter through employer sponsorship speaks to the value our nation places on capitalism within its own borders, and on its competitiveness in the global marketplace.

As a nation of immigrants, we recognize that foreign nationals have much to contribute to our marketplace. It is this recognition of foreign talent that lent itself to the creation of the L-1B “specialized knowledge” visa, a visa designed so that multinational business owners—business people with offices abroad and in the United States (or those who wish to open an office in the United States)—can bring foreign workers with “specialized knowledge” of the business’s product or process into the U.S. temporarily, so that its workers can perform the necessary specialized services in the U.S.

Unfortunately, however, for many businesses petitioning for the L-1B “specialized knowledge” visa, procuring the benefit has become a tedious battle. Petitioners are often required to provide evidence of facts that are irrelevant for the purposes of demonstrating specialized knowledge, or worse, denied visas for failing to demonstrate that specialized knowledge is required in cases where overwhelming evidence has demonstrated that such knowledge is necessary for the job. For example, take one case where a petitioner was denied an L-1B “specialized knowledge” visa for its employee because it failed to demonstrate that working on its product required “specialized knowledge”. In the denial, USCIS acknowledged that the company had a proprietary product and that the employee had knowledge of its proprietary product. However, USCIS stated that this failed to meet the definition of “specialized knowledge” because the company had failed to demonstrate that it was the only company in the industry that provided its service. To the reasonable person, such a denial seems absurd; such a policy could render obsolete the entire category of specialized knowledge and certainly undermines the capitalist values that inspired the L-1B “specialized knowledge” visa category in the first place. If the L-1B “specialized knowledge” category requires a showing that a business is the only one in the industry to provide a service, no business with a competitor would be able to transfer a worker to the U.S. under the L-1B “specialized knowledge” category. Coca-Cola would be unable to bring in a worker with knowledge of its proprietary product because Pepsi provides a similar service. A showing that an industry is the only one of its kind to provide a service is clearly not a requirement for showing “specialized knowledge”, but, unfortunately, denials for failing to demonstrate the existence of “specialized knowledge” are often the result of absurd interpretations of the L-1B “specialized knowledge” category requirements.

One cannot entirely fault USCIS officers, however, for their sometimes absurd interpretations of “specialized knowledge”. The definition of “specialized knowledge” has long been the subject of contention in court cases due to its ambiguity in the regulations at 8 C.F.R. §214.2(l)(1)(ii)(D), which define specialized knowledge as “[S]pecial knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures”.

Legacy INS attempted, multiple times, to provide guidance to the term “specialized knowledge” identifying knowledge of a proprietary product as an indicator that specialized knowledge exists (See Matter of Sandoz Crop Protection Corp, 19 I&N Dec. 666 [Comm. 1988], and Matter of Penner, 18 I&N Dec. 49 [Comm. 1982]), especially where the employee’s duties relating to the proprietary product are “necessary in order for the company to remain competitive.” (Matter of Colley, 18 I&N Dec. 117 [Comm. 1981]). However, the regulatory definition of “specialized knowledge” (born of the Immigration Act of 1990) did not require proprietary knowledge as a prerequisite for L-1B classification. In 1994, James A. Puleo issued a memorandum attempting to delineate what it is that makes up “specialized knowledge”, and included such factors as “knowledge that is valuable to an employer’s competitiveness in the marketplace” and “knowledge of a product or process which (could not) be easily transferred or taught to another individual”. (Memorandum on Interpretation of Specialized Knowledge from James A. Puleo, Acting Executive Associate Commissioner, Office of Operations, CO 214L-P [March 9, 1994]). In 2002, a memorandum issued by Fujie Ohata gave a broad interpretation of the term, defining “specialized knowledge” as “a type of specialized or advanced knowledge that is different from that generally found in the particular industry.” (Memorandum on Interpretation of Specialized Knowledge from Fujie O. Ohata, Associate Commissioner, Service Center Operations, Immigration Services Division, HQSCOPS 70.6.1 (Dec. 20, 2002). In 2011, the Department of State again attempted to issue guidance as to how adjudicators of L-1B visa petitions should define specialized knowledge. Referencing the earlier INS cases, it identified proprietary knowledge of a product as an indicator that “specialized knowledge” exists, especially where knowledge “would be difficult to impart to another without significant economic inconvenience.” (U.S. Department of State, Cable, “Guidance on L Visas and Specialized Knowledge, Reference Document: STATE: 002106, 01/11” January 2011.)

Most recently, as this blog elaborated, in October 2014 the United States Court of Appeals for the District of Columbia Circuit came down hard on USCIS for its “wooden” application of the law in denying a chef an L-1B specialized knowledge visa. (See Fogo De Chao (Holdings) Inc. v. U.S. Dept. of Homeland Security, et al. No. 1:10-cv-01024 [Court of Appeals for the District of Columbia, Filed on 10/21/2014]). The Fogo court declined to give the USCIS decision “Chevron” deference as the regulations circularly parrot the statute, rather than provide a definition of “specialized knowledge”. It held that specialized knowledge could be obtained through deep immersion in a culture and also identified “economic hardship” as key in identifying where “specialized knowledge” exists. The Fogo decision, while helpful to practitioners seeking legislative support for a broader definition of specialized knowledge, also serves to highlight the desperate need for a more concrete definition of “specialized knowledge”.

United States Secretary of Homeland Security Jeh Johnson recognized the need for guidance in his November 20, 2014 Memo to USCIS Director Leon Rodriquez and USCIS Acting Director Thomas S. Winkowski, Policies Supporting U.S. High-Skilled Business and Workers. Specifically, Section D, “Bringing Greater Consistency to the L-1B Visa Program”, directs USCIS to “issue a policy memorandum that provides clear, consolidated guidance on the meaning of ‘specialized knowledge’,” and acknowledges the critical importance of the L-1B Visa Program for multinational companies as an “essential tool for managing a global workforce as companies choose where to establish new or expanded operations, research centers, or product lines, all of which stand to benefit the U.S. economy.” (emphasis added).

As USCIS drafts its guidance it should take care to note the capitalist values that inspired the creation of this visa category. This category was created, as noted by Secretary Johnson, “to benefit the U.S. economy”. To woodenly interpret this category so as to rule out many qualified workers, to create unnecessary limitations, all of this would only serve to hurt our own economy and to limit our own country’s competitiveness in the global marketplace. The Fogo de Chao decision, which allows for a broader interpretation of specialized knowledge, provides a good reference point as to how to interpret “specialized knowledge”. The guidance should be clear so that there can be no more ambiguity for USCIS officers attempting to interpret “specialized knowledge”.

“Specialized knowledge” should be found to exist where an employer would incur significant economic loss in training another individual to do the work required of an employee. “Specialized knowledge” should be found where the work requires knowledge of a proprietary product. Even if a company does not have a proprietary product, specialized knowledge should be found where an employee’s knowledge may be uncommon or advanced, and need not be narrowly drawn within the company and reserved for a select few. Specialized knowledge should also be found where a company may not have a product, but has developed a unique methodology for delivering services to customers. The guidance should state unambiguously the long-standing USCIS rule that was reiterated in the aforementioned Ohata memo, that “there is no test of the U.S. Labor Market in determining whether an alien possesses specialized knowledge. Only an examination of knowledge possessed by the alien is necessary”. USCIS should be reminded that our country desires the services of qualified L-1B individuals and it should be encouraged to interpret “specialized knowledge” broadly, so as not to preclude workers who qualify to benefit our country under this category. Essentially, a foreign national should be found eligible for the L-1B visa where it can be shown that the person’s set of skills or knowledge is complex, and has contributed to the success of the foreign entity, and will be replicated in the United States on this person’s transfer.

The United States of America takes great pride in its capitalist ideals, and strives to be the most competitive nation on earth. The L-1B visa allows the United States to do just that. USCIS should ensure that its guidance with relation to the L-1B “specialized knowledge” visa category comports with our nation’s values.

(Rachel Weissman is a Contract Associate at Cyrus D. Mehta & Associates, and is pending admission to the N.Y. State Bar after passing the bar examination. She graduated with a J.D. from Brooklyn Law School in 2014, where she focused her studies on Immigration Law and served as Treasurer of the Brooklyn Law Immigration Society. She looks forward to a day when the definition of “specialized knowledge” is interpreted to allow multinational business owners to easily transfer their “specialized knowledge” employees to the United States.)

The best way for a great nation of immigrants such as America to showcase its richness and diversity is through fine ethnic restaurants. A better appreciation of different cuisines can also foster tolerance and social harmony. Cities and towns become more interesting and thrive if they have restaurants with diverse cuisines. For such restaurants to exist, though, there needs to be an immigration policy that would allow restaurants to access foreign specialty chefs. This unfortunately is not the case. The United States Immigration and Citizenship Services (USCIS) views applications for chefs under the limited and narrowly drawn nonimmigrant visa categories with a jaundiced eye. One such pathway for chefs is the L-1B visa for specialized knowledge employees who are being transferred from a foreign entity to a qualifying US entity. The Brazilian restaurant chain Fogo de Chao successfully brought in 200 specialty chefs on the L-1B visa, when the USCIS changed its mind and denied one of their visas. The restaurant appealed the denial.

On October 21, 2014, the United States Court of Appeals for the District of Columbia Circuit in Fogo de Chao v. DHS, No. 13-5301, skewered the USCIS for denying the L-1B visa to a Brazilian churrasqueiro or gaucho chef. Fogo de Chao contended that it sought to recreate for its customers in the United States an authentic churrascaria experience, and it did so by employing a number of gaucho chefs from Brazil who learned this style of cooking first hand by growing up in the Rio Girande do Sul region and through training and at least two years of experience in Fogo de Chao’s Brazilian restaurants. A gaucho chef who possessed this knowledge would be capable of i) preparing and cooking five to six skewers of meat on an open grill; ii) circulating through the dining room to carve meats for guests; iii) educating those guests about both the cuts of meat being served and gaucho culinary and cultural traditions, and iv) monitoring the estimated future demand for food over the course of the evening.

The key issue in Fogo was whether a foreign national chef could gain such specialized knowledge through one’s own cultural traditions, upbringing or life experience. The USCIS, including its Administrative Appeals Office, held that one’s own cultural upbringing falls within the realm of general knowledge rather than specialized knowledge, and thus such a chef would not qualify for an L-1B visa. The Court of Appeals in Fogo disagreed with the USCIS’s rather wooden application of the law. (Many immigration practitioners like me will take great delight in the scolding given to the USCIS for being so wooden as we have experienced this tendency first hand!) The Fogo Court held that there was nothing in INA section 214(c)(2)(B) which precludes culturally acquired knowledge as a form of specialized knowledge. That INA section defines specialized knowledge in a rather circular way, as follows:

…an alien is considered to be serving in a capacity involving specialized knowledge with respect to a company if the alien has a special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company

A government agency’s interpretation of an ambiguous statute is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)—often abbreviated as “Chevron deference”. Most are deterred from seeking review of a “wooden” decision in federal court to challenge an erroneous decision of the USCIS because of the Chevron deference the court will give to the government’s interpretation of a particular visa statutory provision. The Fogo Court gave no such deference because the USCIS regulation at 8 CFR section 214.2(l)(1)(ii)(D) merely parroted the statutory L-1B definition in the same circular manner, and a parroting regulation deserves no deference. Gonzales v Oregon, 546 US 243, 257 (2006). Instead, the Court applied the lower standard under Skidmore v. Swift & Co, 323 U.S. 134 (1944) where the weight accorded to an administrative interpretation or judgment “depends upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those facts which give it power to persuade, if lacking power to control.” Even under the lower Skidmore standard, the Fogo Court held that the Administrative Appeals Office lacked the power to persuade that it could categorically exclude cultural knowledge as a basis for specialized knowledge.

Also noteworthy in Fogo was the government’s dismissal of the relevance of the economic hardship the restaurant would suffer if it had to train another employee to perform the gaucho chef’s proposed duties. The Fogo Court disagreed, emphasizing that economic inconvenience is sometimes the most concrete evidence that can be used to determine whether knowledge is specialized. According to the Fogo Court: “Consideration of evidence of this type provides some predictability to a comparative analysis otherwise relatively devoid of settled guideposts….That specialized knowledge may ultimately be a ‘relative and empty idea which cannot have plain meaning’...is not a feature to be celebrated and certainly not a license for the government to apply a sliding scale of specialness that varies from petition to petition without explanation. Suddenly departing from policy guidance and rejecting outright the relevance of Fogo de Chao’s evidence of economic inconvenience threatens just that.” Id. at 28 (citations omitted).

Although Fogo applied to a Brazilian gaucho chef, it can arguably be applied to other occupations involving specialized knowledge. Skills gained through certain cultural practices may be relevant in determining specialized knowledge in other settings, such as Japanese management techniques. Similarly, acquiring deep knowledge in a particular software application through another employer can equip the L-1B visa applicant with specialized knowledge that can stand out in comparison to others. Moreover, demonstrating economic hardship as a way to prove specialized knowledge has gained more force after Fogo. The 1994 Puleo Memorandum was resurrected in Fogo, which endorsed a dictionary definition of the terms “special” and “advance” rather than soley tether specialized knowledge to the company’s products or processes. Fogo has also paved the way to argue that the USCIS’s interpretation of specialized knowledge does not deserve Chevron deference. Finally, Fogo ought to potentially have more precedential value than other circuit court decisions since under 28 U.S.C. §1391(e)(1)(B) a petitioner could seek review in the U.S. District Court for the District of Columbia as the Administrative Appeals Office is located in the District of Columbia.

In recent times, the USICS has had the upper hand in L-1B visa adjudications by literally reading specialized knowledge out of the statute. Fogothus comes as a breath of fresh air and should hopefully temper the USCIS’s zeal in “woodenly” debarring specialized knowledge workers who can otherwise bring great value to America. We all need to forcefully deploy the hidden nuggets in Fogo to restore the more commonsensical definition of specialized knowledge.